A hearing in the Fourth Circuit on appeal of a lower court ruling allowing the District of Columbia and Maryland to sue President Trump under the Constitution’s emoluments clause went, to put it mildly, poorly. All three judges are GOP appointees, one by Trump himself. The New York Times reports:
The three-judge panel of the United States Court of Appeals for the Fourth Circuit in Richmond, Va., appeared much less sympathetic to the lawsuit than the federal district judge in Maryland who has overseen the case thus far. The suit, filed by the attorneys general of Washington, D.C., and Maryland, alleges that Mr. Trump’s decision to retain ownership of the hotel after he took office violates the Constitution’s emoluments clauses.
During the hearing, Judge Dennis W. Shedd, the panel’s senior jurist, suggested the lawsuit seemed to seek to penalize the president for being a successful business executive. “You even want him fired from ‘The Apprentice,’ don’t you,” he said, apparently referring to reports that the president benefited from the purchase of rights for the show by government-owned foreign broadcasters.
Constitutional scholar Larry Tribe conceded, “It’s always treacherous to read too much into the questions counsel are asked by appellate judges, but the questions the Fourth Circuit panel asked ... voicing skepticism — unwarranted, in my view — about harm to the State of Maryland and to DC suggest to me that these judges, unlike District Court Judge [Peter J.] Messitte, might have been readier to support standing for the competing hotels and restaurant workers like those who joined the CREW lawsuit that’s currently on review in the Second Circuit, where the district court failed to grant standing.” Tribe is co-counsel in the Second Circuit suit.
He also notes that a third emoluments suit brought by some 200 Democratic members of Congress in the D.C. district court may also encounter standing problems “although in my view none of the three suits should be tossed out for want of standing.” He adds, “It would be extremely unfortunate if violations of the most important constitutional protection against a dangerously corrupt and compromised president — the protection of the Emoluments Clauses against presidential acceptance of financial benefits from foreign powers or others unaccountable to the US electorate — could never be enforced by the independent federal judiciary because the ‘only’ harm that federal courts would recognize would be demonstrable harm to particular individuals rather than harm to the nation as a whole.”
The Fourth Circuit hearing is one more reminder that the Senate’s spree of judicial confirmations will ripple through the courts and might render the federal judiciary over time far less likely to confront Trump (as well as his successors) and his extravagant claims of executive power. (Rather than the risky gambit of packing the Supreme Court, Democrats should consider, if they win the White House and the Senate, greatly expanding the number of circuit and district court slots. Aside from the need for some balance in the federal bench, federal judges presently are genuinely overwhelmed with their caseloads and could use more bodies.)
It’s noteworthy that George Conway, presidential adviser Kellyanne Conway’s husband with whom Trump is now in a Twitter war more vicious and personal than previous skirmishes, revealed that Trump has been worried about the emoluments issue for some time. The Post reports:
Conway ... said he was surprised to get a call from Trump around the time he took office, when Trump was seeking legal advice about a lawsuit alleging that he was benefiting financially from the presidency in violation of the emoluments clause of the Constitution. The call, Conway said, was arranged by his wife. “He wanted to know what I thought about the judge and what I thought about the case,” Conway said.
Well, Trump may be right to be worried. If the courts ever get to the merits, his days as running an operation for taking in foreign money while serving as president might come to an end.
Despite this dreary news, we should not overlook the most promising development for those seeking to end the noxious practice whereby the president and his family can make money from foreigners, thereby calling into question whether the White House is acting on behalf of the president’s own financial interests or the country’s.
In contrast to the previous Republican-led House, we now now have a Democratic-controlled House and its systematic investigation of Trump’s wrongdoing. In seeking documents from 81 entities and individuals. House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) clearly aimed many of his inquiries at “the possibility of pay-to-play style corruption and possible violations of the Constitution’s emoluments clause, which bans public officials from receiving gifts from foreign governments.” The Times reported this month:
Mr. Nadler queried Trump Organization executives — including [Allen] Weisselberg, Matthew Calamari, Alan Garten and Ronald C. Lieberman — for documents related to any foreign or domestic government “discussing, offering, or providing, or being solicited to discuss, offer, or provide, any present or emolument of any kind” to Mr. Trump, his businesses, [Jared] Kushner, his businesses and the inaugural committee.
The committee requested similar information from the General Services Administration, which leases the Old Post Office building in downtown Washington to the Trump International Hotel.
In other words, even if the courts deflect suits trying to stop the flow of foreign emoluments into the Trump coffers, Congress has every intention of picking up the slack. And remember that the Constitution gives Congress the power to approve or deny emoluments. At some point, the House might vote to disallow Trump’s receipt of foreign monies. Whether Congress could then seek to enforce its ruling (e.g. by demanding divestiture) in court is an open question.
Trump’s receipt of foreign emoluments is just one aspect of a pattern of financial misconduct, which includes conflicts of interest, self-enrichment, lack of transparency and employment of his daughter and son-in-law with the same maladies. In a post-Trump world, one of the first orders of business must be to ensure that no president is allowed to get away with a fraction of what Trump has been able to pull off.